Harrilal et Al v Mohess and Great Northern Insurance Company
| Jurisdiction | Trinidad & Tobago |
| Judge | Mon Desir, J. |
| Judgment Date | 11 January 2012 |
| Neutral Citation | TT 2012 HC 7 |
| Docket Number | HCA 1682 of 2001 |
| Court | High Court (Trinidad and Tobago) |
| Date | 11 January 2012 |
High Court
Mon Desir, J.
HCA 1682 of 2001
Mr. Azeem Mohammed for the plaintiffs.
Mr. Taurean Dassyne for the defendants.
Negligence - Liability — Motor vehicle accident.
In this action there are two plaintiffs, both of whom are represented by the same counsel, Mr. Mohammed and two defendants, both of whom are represented by one counsel, Mr. Dassyne.
The action was commenced by a generally endorsed Writ of Summons filed herein on January 21, 2001 and accompanied by the requisite Statement of Claim filed herein on January 22, 2001. It is an action in the tort of negligence, brought by the plaintiffs, Savitri Harrilal (hereinafter referred to as “Savitri”) and Kuntie Harrilal (hereinafter referred to as “Kuntie”)- a minor by her mother and next friend, namely- the said Savitri Harrilal- by which they, in substance, claim that on or about the 25th day of April, 2000, while they were in the downstairs area of their home situated at No. 366 Mohesh Road Extension, Penal-Ms. Tara Maureen Mohess, the first defendant- (hereinafter referred to as “Ms. Mohess”) so negligently drove, managed or controlled motor vehicle registration number PAU 9639 into the home of the plaintiffs thereby colliding with them and causing the plaintiffs damage, personal injuries and consequential loss.
The Second defendant, the Great Northern Insurance Company Limited, (hereinafter referred to as “GNIC”) were joined as a party to these proceedings by virtue of the undisputed fact that they- (1) were at all material times authorized insures within the meaning of the Motor Vehicles Insurance (Third Party Risks) Act, Chap. 48:51; and (2) had issued, at the material time, a policy and certificate of insurance with respect to the said motor vehicle PAU (9636).
On January 22, 2001 an appearance was entered on behalf of both defendants and thereafter, their joint Defence was filed on February 4, 2002. In their Defence, the defendants effectively put the plaintiffs to strict proof of the matters that they have alleged but they also contend that in any event—
(1) “the plaintiffs' claim is an abuse of the process of the Court, as it is ‘minimal’ and ought to have been brought in the Petty Civil Court”;
(2) “assuming but not admitting that a collision was caused as alleged by the plaintiffs ‘in the area of the plaintiffs' home’ then [GNIC] would maintain that they are not liable, as the collision did not take place in a public road”;
(3) “[Ms. Mohess] is only aware that while driving her motor vehicle in the yard of the plaintiffs' property, [Savitri] complained that [Ms. Mohess'] vehicle had ‘grazed’ the former, but she is not aware of any collision between herself and the plaintiffs; and she further contends that even if any such collision did occur, it was due to the negligence of [Kunti]; and
(4) “further and in the alternative, [Ms. Mohess] contends that in the presence and with the full approval and consent of [Kunti], [Ms. Mohess] paid to [Kunti's] husband, the sum of $500.00 (without admission as to negligence) which [Kunti] accepted as being sufficient for any alleged injuries suffered by [Savitri] and, [Kunti] never made any claim or complaint in respect of herself”.
Thereafter, on March 8, 2002 the plaintiffs' Reply was filed, and in which they joined issue with the defendants upon their Defence.
The matter came up for hearing and the trial commenced before this Court on April 13, 2010. At the commencement of the trial, learned counsel for the plaintiffs advised the Court that he intended to call three (3) witnesses, namely- the plaintiffs Savitri Harrilal, her daughter Kuntie Harrilal and Dr. Steven Ramroop. Learned counsel for the Defence on the other hand, indicated that he did not propose to call any witnesses but stated instead that he intended to rely entirely on the uncontroverted evidence of the plaintiffs and that of their witness. He also signalled that there was a point of law which he intended to argue in relation to GNIC.
The point of law to which learned counsel for the Defence referred was foreshadowed at paragraph 2 of their Defence which states simply that—
“Assuming but not admitting that a collision was caused as stated by the plaintiffs, in the area of the plaintiffs home, then [GNIC] will maintain that they are not liable as the collision did not occur in A private road.” (My emphasis)
Mr. Dassyne having signalled his intention to conduct his Defence in that particular manner, learned counsel for the plaintiffs invited this Court to consider whether counsel for the defendants might not be faced with a potential conflict of interest. This he suggested would arise if, having regard to the state of the evidence at the end of the day, Defence counsel was forced to concede liability in respect of Ms. Mohess, while seeking to persuade the Court that his other client, GNIC should nevertheless escape liability by virtue of the matters pleaded at paragraph 2 of their Defence.
Counsel for the Defence was firmly of the opinion and so advised the Court that based on his instructions and the law as he understood it, there was in fact no such conflict of interest between the respective cases for each defendant. This Court therefore, invited the plaintiffs to open their case, which they did and there ensued the evidence of the plaintiffs Savitri Harrilal, her daughter Kuntie Harrilal and their Dr. Steven Ramroop, as indicated by learned counsel for the plaintiffs. Their witness statements were tendered into evidence as the evidence in chief of each of them and they were cross-examined by learned counsel for the defendants.
At the close of the case for the plaintiffs, learned counsel for the Defence was called upon to open the case for the Defence and upon an enquiry being made by this Court, he conceded that based on the evidence for the plaintiffs which he was in no position to challenge, he would be abandoning paragraphs 1, 3, 4, 5, 6, 7, 8, and 9 of their Defence. He further indicated that he would be conceding liability on the part of Ms. Mohess. He however, indicated that he had his other client's (GNIC's) firm instructions to pursue paragraph 2 of their Defence.
It was at this point that learned Counsel for the plaintiff, quite rightly I must say, again raised the issue of whether, having regard to the state of the evidence and the concessions made by learned counsel for the Defence, in respect of Ms. Mohess, he should not now reconsider his position regarding the potential conflict of interest between his stated position in respect of Ms. Mohess and the position which he proposed to adopt in respect of GNIC.
In the circumstances, when the matter again came up for hearing before this Court on June 8, 2010, I directed that full written submissions and authorities be filed by both parties regarding both the question, namely- (1) whether there was any conflict of interest posed by counsel for the defence representing both defendants in this action; and (2) whether, in the particular circumstances of this case, the accident took place on a public or private road. The submissions for both sided were filed herein on June 21, 2010 and I have endeavoured in what follows hereinafter, to give full weight to the arguments advanced by each counsel in their submission on this matter.
As part of this Court's management of the issues before it, I advised counsel that I would not give consideration to the issue of whether or not the accident took place on a public or private road, until and unless I had been satisfied that the question of a conflict of interest did not arise for defence counsel. In this judgement I have therefore, sought to treat first with the latter issue.
As a result of these rival contentions between the parties there arose primarily three (3) broad issues for this Court's consideration, namely—
-
(a) Whether there exists a conflict of interest between the cases for each defendant, so that they cannot and should not both be represented by the same Counsel as is the case now?
-
(b) Whether, the first defendant (Ms. Mohess) was negligent?
-
(c) Whether, for the purposes of the liability of the Second defendant, (GNIC) the accident occurred on a public or private road?
With respect to the question of whether or not there exists a conflict of interest between the cases for both defendants, so that they cannot and should not both be represented by the same Counsel as is the case now it is important to first have regard to what is the defence being advanced by each defendant and what, if any, are the issues between them.
Each defendant in this case has advanced a separate and distinct defence from that of the other and I have endeavoured in the ensuing paragraphs to give full effect to the submissions for both sided regarding these matters.
In respect of the first defendant, Ms. Mohess- three things are argued, namely that—
-
(a) the plaintiffs' claim is an abuse of the process of the Court, as it is “minimal” and ought to have been brought in the Petty Civil Court;
-
(b) Ms. Mohess is only aware that while driving her motor vehicle in the yard of the plaintiffs' property, Savitri complained that Ms. Mohess's vehicle had “grazed” the former, but she is not aware of any collision between herself and the plaintiffs; and she further contends that even if any such collision did occur, it was due to the negligence of Kunti; and
-
(c) further and in the alternative, Ms. Mohess contends that in the presence and with the full approval and consent of the Kunti, Ms. Mohess paid to the Kunti's husband, the sum...
To continue reading
Request your trial